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Peery v. Director, Virginia Department of Corrections

United States District Court, W.D. Virginia, Roanoke Division

September 11, 2017



          Elizabeth K. Dillon, United States District Judge.

         Donald Wayne Peery, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on a judgment by the Pittsylvania County Circuit Court. Respondent filed a motion to dismiss, to which Peery responded, making this matter ripe for disposition. Upon review of the record, the court concludes that respondent's motion to dismiss must be granted, and Peery's § 2254 petition must be dismissed.


         On October 10, 1997, the Pittsylvania County Circuit Court entered a final order convicting Peery of twenty-three counts of forgery, twenty-six counts of uttering a forged check, one count of eluding a police officer, and one count of reckless driving, and sentenced him to a total of fifty-three years, four months, and sixty days. The court suspended all but four years and six months, and Peery was released and placed on five years of supervised probation. After two separate convictions while on probation, [1] Peery appeared before the trial court on February 26, 2013 and was found guilty of violating the terms of his probation for the second time. Peery did not contest the probation violation, and the court imposed the remaining balance of his previously suspended sentences, which totaled forty-eight years, seven months, and sixty days.

         On appeal, Peery did not dispute the probation violation, but instead argued that the trial court abused its discretion in imposing his suspended sentence. On May 25, 2013, Peery's court-appointed counsel advised Peery by letter that he would file a petition for a writ of error and send a copy of the petition to Peery once it was filed. Peery and counsel corresponded by mail further, despite counsel's failure to respond to Peery's requests to send him documents related to his appeal.[2] On September 17, 2013, Peery wrote to counsel advising him that he had been transferred from the Amherst County Adult Detention Center to the Nottoway Correctional Center, and counsel acknowledged receipt of that letter on October 3, 2013.

         Soon thereafter, counsel informed Peery by letter dated October 16, 2013, that his petition for writ of error had been denied that same date and that if Peery did not notify counsel by October 28, 2013, to proceed further with his appeal, counsel would close Peery's file. Peery claims that he wrote to counsel again on October 17, 2013, requesting that counsel continue with the appeal.[3] On March 23, 2014, Peery sent another letter to notify counsel that he has been transferred to the River North Correctional Center (“RNCC”) and had not received any of the requested copies of his filings. Over two months later, on July 1, 2014, Peery again attempted to contact counsel by letter, requesting an update on his case and stating that he never received the copies.

         Upon not receiving any response from counsel, Peery filed a complaint with the Virginia State Bar (“VSB”) on October 10, 2014, stating that he had not been contacted by counsel since October 16, 2013, and, consequently, had no knowledge of the status of his appeal. By letter dated May 6, 2015, the VSB informed Peery that it had completed the investigation into his pending bar complaint. The VSB determined that counsel had failed to act with the requisite level of reasonable diligence and promptness in representing Peery pursuant to Rule 1.3 of the Virginia State Bar Rules of Professional Conduct.

         On October 8, 2015, Peery filed a petition for a writ of habeas corpus in the Supreme Court of Virginia claiming counsel was ineffective for abandoning him on appeal. The petition was dismissed on December 14, 2015, as untimely pursuant to Virginia Code § 8.01-654(A)(2). (Order, Peery v. Dir. Dep't. of Corr. of Va., Record No. 151521, (Va. Dec. 14, 2015)).

         On February 18, 2016, [4] Peery signed and dated his initial petition for writ of habeas corpus in the U.S. District Court for the Western District of Virginia pursuant to 28 U.S.C. § 2254, which the court received on February 22. (Peery v. Va. Dep't. of Corr., No. 7:16cv00070 (W.D. Va. March 14, 2016) (Docket No. 21, Ex. 5E)). Peery's petition alleged that defense counsel was ineffective for not continuing Peery's appeal of the February 2013 probation revocation sentence. The court notified Peery that his petition appeared to be untimely under 28 U.S.C. § 2244(d) and ordered Peery to provide further information on the issue of timeliness within ten days from Sunday, February 26, 2016. Peery did not file a timely response to this order, and by opinion entered March 14, 2016, the court dismissed the case without prejudice.

         Thereafter, in response to the dismissal order entered on March 14, 2016, Peery offered evidence that prison mailroom delays caused him to receive the court's February 26, 2017 order late. Peery did not receive the order until March 9, 2016, the date that his response was due to the court. Peery did not move for reinstatement of his initial petition, No. 7:16CV0070.

         On May 13, 2016, the court received Peery's present habeas petition, signed and dated on May 9, 2016. As in the initial petition, he challenges his confinement under the February 2013 state probation revocation order, based on counsel's alleged abandonment of him on appeal. Again, the court notified Peery that his habeas claim was untimely filed and granted him an opportunity to present additional argument on that issue, which he has done. Thereafter, respondent filed the motion to dismiss Peery's petition as untimely and procedurally barred. Peery responded, making this matter ripe for decision.


         A. Timeliness

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one-year statute of limitations applies when a person in custody pursuant to a state court judgment files a federal petition for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1)(A-D).[5] Generally, this period begins to run from the date on which the judgment becomes final by exhausting the availability of direct review. See 28 U.S.C. § 2244(d)(1)(A). However, the time during which a “properly filed” state habeas petition is pending is not counted towards the limitations period. 28 U.S.C. § 2244(d)(2).

         Peery's challenge to the February 2013 revocation order is clearly untimely under § 2244(d)(1)(A). Direct review of the revocation order concluded, and Peery's federal habeas time clock began to run, on November 15, 2013, thirty days after the Court of Appeals of Virginia denied his appeal on October 16, 2013. See Va. Sup. Ct. R. 5:14 (allowing 30 days from date of judgment to note an appeal). Peery then filed a state habeas petition in the Supreme Court of Virginia on October 8, 2015. The state habeas court dismissed Peery's petition on December 14, 2015, as untimely, pursuant to Virginia Code § 8.01-654(A)(2). Because the state habeas court found Peery's petition to be untimely, and therefore improperly filed, the filing and pendency of the petition did not toll the federal filing period under § 2244(d)(2). Moreover, under § 2244(d)(1)(A), Peery's one-year federal filing period expired on November 15, 2014, well before he filed his state petition, another reason that the state petition did not toll the federal time clock. Furthermore, even if the court considered Peery's claim as having been filed in February 2016, in his first federal habeas petition, he did not bring that case until more than a year out of time under § 2244(d)(1).

         Peery has not asserted that his § 2254 petition is timely under the other three subsections of § 2244(d), and the court finds no basis for so finding. Peery's case and petition do not implicate any state-created impediment to his presentation of the current claim so as to trigger § 2244(d)(1)(B). His case also does not involve any new rule of constitutional law declared in a recently decided and retroactively applicable decision of the United States Supreme Court, so as to invoke § 2244(d)(1)(C). Lastly, with due diligence, Peery could have discovered his attorney's alleged misconduct long before May 6, 2015, when the VSB concluded its investigation on his complaint. Peery knew the facts about his attorney's errors by the time he initially filed the VSB complaint in October, 2014.[6] Thus, Peery does not state facts justifying calculation of his federal filing period beginning on May ...

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